Financial Services and Markets Bill -
Amendments to be debated in the House of Lords
- continued
House of Lords

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After Clause 376
 
  
BY THE LORD McINTOSH OF HARINGEY
 
275H     Insert the following new Clause-- 
     ("  .--(1)  If the Authority decides not to take--
    (a)  the action proposed in a warning notice, or
    (b)  the action to which a decision notice relates,
it must give a notice of discontinuance to the person to whom the warning notice or decision notice was given.
 
    (2)  But subsection (1) does not apply if the action proposed in a warning notice was the refusal of an application made by the person to whom the notice was given.
 
    (3)  A notice of discontinuance must identify the proceedings which are being discontinued.")
Notice of discontinuance.
275J     Insert the following new Clause-- 
     ("  .--(1)  If the Authority has given a person a decision notice and the matter was not referred to the Tribunal within the period mentioned in section 124(1), the Authority must, on taking the action to which the decision notice relates, give the person concerned and any person to whom the decision notice was copied a final notice.
 
    (2)  If the Authority has given a person a decision notice and the matter was referred to the Tribunal, the Authority must, on taking action in accordance with any directions given by--
    (a)  the Tribunal, or
    (b)  the court under section 128,
give that person and any person to whom the decision notice was copied a final notice.
 
    (3)  A final notice about a statement must--
    (a)  set out the terms of the statement;
    (b)  give details of the manner in which, and the date on which, the statement will be published.
    (4)  A final notice about an order must--
    (a)  set out the terms of the order;
    (b)  state the date from which the order has effect.
    (5)  A final notice about a penalty must--
    (a)  state the amount of the penalty;
    (b)  state the manner in which, and the period within which, the penalty is to be paid;
    (c)  give details of the way in which the penalty will be recovered if it is not paid by the date stated in the notice.
    (6)  In any other case, the final notice must--
    (a)  give details of the action being taken;
    (b)  state the date on which the action is to be taken.
    (7)  The period stated under subsection (5)(b) may not be less than 14 days beginning with the date on which the final notice is given.
 
    (8)  If all or any of the amount of a penalty payable under a final notice is outstanding at the end of the period stated under subsection (5)(b), the Authority may recover the outstanding amount as a debt due to it.")
Final notice.
275K     Insert the following new Clause-- 
     ("  .--(1)  Neither the Authority nor a person to whom a warning notice or decision notice is given or copied may publish the notice or any details concerning it.
 
    (2)  A notice of discontinuance must state that, if the person to whom the notice is given consents, the Authority may publish such information as it considers appropriate about the matter to which the discontinued proceedings related.
 
    (3)  A copy of a notice of discontinuance must be accompanied by a statement that, if the person to whom the notice is copied consents, the Authority may publish such information as it considers appropriate about the matter to which the discontinued proceedings related, so far as relevant to that person.
 
    (4)  The Authority must publish such information about the matter to which a final notice relates as it considers appropriate.
 
    (5)  But the Authority may not publish information under this section if publication of it would, in its opinion, be unfair to the person with respect to whom the action was taken or prejudicial to the interests of consumers.
 
    (6)  Information is to be published under this section in such manner as the Authority considers appropriate.
 
    (7)  Notice of discontinuance" means a notice given under section (Notice of discontinuance).
 
    (8)  Consumers" means person who are consumers for the purposes of section 129.")
Publication.
275L     Insert the following new Clause-- 
 ("Third party rights and access to evidence 
     .  Sections (Third party rights) and (Access to Authority material) apply to--
    (a)  a warning notice given in accordance with section 56(1), 62(3), 66(1), 88(1), 116(1), 200(1), 248(1), 272(1), 322(1), 335(2) (whether as a result of subsection (1) of that section or section 242(1)) or 372(1);
    (b)  a decision notice given in accordance with section 56(3), 62(4), 66(4), 88(4), 117(1), 192(3)(a), 201(1), 248(2), 272(2), 322(3), 335(3) (whether as a result of subsection (1) of that section or section 242(1)) or 373(1).")
Application of sections (Third party rights) and (Access to Authority material).
275M     Insert the following new Clause-- 
     ("  .--(1)  If any of the reasons contained in a warning notice to which this section applies relates to a matter which--
    (a)  identifies a person ("the third party") other than the person to whom the notice is given, and
    (b)  in the opinion of the Authority, is prejudicial to the third party,
a copy of the notice must be given to the third party.
 
    (2)  Subsection (1) does not require a copy to be given to the third party if the Authority--
    (a)  has given him a separate warning notice in relation to the same matter; or
    (b)  gives him such a notice at the same time as it gives the warning notice which identifies him.
    (3)  The notice copied to a third party under subsection (1) must specify a reasonable period (which may not be less than 28 days) within which he may make representations to the Authority.
 
    (4)  If any of the reasons contained in a decision notice to which this section applies relates to a matter which--
    (a)  identifies a person ("the third party") other than the person to whom the decision notice is given, and
    (b)  in the opinion of the Authority, is prejudicial to the third party,
a copy of the notice must be given to the third party.
 
    (5)  If the decision notice was preceded by a warning notice, a copy of the decision notice must (unless it has been given under subsection (4)) be given to each person to whom the warning notice was copied.
 
    (6)  Subsection (4) does not require a copy to be given to the third party if the Authority--
    (a)  has given him a separate decision notice in relation to the same matter;
    (b)  gives him such a notice at the same time as it gives the decision notice which identifies him
    (7)  Neither subsection (1) nor subsection (4) requires a copy of a notice to be given to a third party if the Authority considers it impracticable to do so.
 
    (8)  Subsections (9) to (11) apply if the person to whom a decision notice is given has a right to refer the matter to the Tribunal.
 
    (9)  A person to whom a copy of the notice is given under this section may refer to the Tribunal--
    (a)  the decision in question, so far as it is based on a reason of the kind mentioned in subsection (4); or
    (b)  any opinion expressed by the Authority in relation to him.
    (10)  The copy must be accompanied by an indication of the third party's right to make a reference under subsection (9) and of the procedure on such a reference.
 
    (11)  A person who alleges that a copy of the notice should have been given to him, but was not, may refer to the Tribunal the alleged failure and--
    (a)  the decision in question, so far as it is based on a reason of the kind mentioned in subsection (4); or
    (b)  any opinion expressed by the Authority in relation to him.
    (12)  Section (Access to Authority material) applies to a third party as it applies to the person to whom the notice to which this section applies was given, in so far as the material which the Authority must disclose under that section relates to the matter which identifies the third party.
 
    (13)  A copy of a notice given to a third party under this section must be accompanied by a description of the effect of section (Access to Authority material) as it applies to him.
 
    (14)  Any person to whom a warning notice or decision notice was copied under this section must be given a copy of a notice of discontinuance applicable to the proceedings to which the warning notice or decision notice related.")
Third party rights.
275N     Insert the following new Clause-- 
     ("  .--(1)  If the Authority gives a person ("A") a notice to which this section applies, it must--
    (a)  allow him access to the material on which it relied in taking the decision which gave rise to the obligation to give the notice;
    (b)  allow him access to any secondary material which, in the opinion of the Authority, might undermine that decision.
    (2)  But the Authority does not have to allow A access to material under subsection (1) if the material is excluded material or it--
 
 (a)  relates to a case involving a person other than A; and 
 
    (b)  was taken into account by the Authority in A's case only for
 
 
    purposes of comparison with other cases.
 
     (3)  The Authority may refuse A access to particular material which it would otherwise have to allow him access to if, in its opinion, allowing him access to the material--
    (a)  would not be in the public interest, or
    (b)  would not be fair, having regard to--
          (i)  the likely significance of the material to A in relation to the matter in respect of which he has been given a notice to which this section applies; and
          (ii)  the potential prejudice to the commercial interests of a person other than A which would be caused by the material's
 
     
    disclosure.
 
     (4)  If the Authority does not allow A access to material because it is excluded material consisting of a protected item, it must give A written notice of--
    (a)  the existence of the protected item; and
    (b)  the Authority's decision not to allow him access to it.
    (5)  If the Authority refuses under subsection (3) to allow A access to material, it must give him written notice of--
    (a)  the refusal; and
    (b)  the reasons for it.
    (6)  Secondary material" means material, other than material falling within paragraph (a) of subsection (1) which--
    (a)  was considered by the Authority in reaching the decision mentioned in that paragraph; or
    (b)  was obtained by the Authority in connection with the matter to which the notice to which this section applies relates but which was not considered by it in reaching that decision.
    (7)  Excluded material" means material which--
    (a)  has been intercepted in obedience to a warrant issued under any enactment relating to the interception of communications;
    (b)  indicates that such a warrant has been issued or that material has been intercepted in obedience to such a warrant; or
    (c)  is a protected item (as defined in section (Protected items)).")
Access to Authority material.
  
BY THE LORD SAATCHI
THE LORD KINGSLAND
[Amendments 275NA to 275NC are amendments to Amendment 275N]
 
275NA*     Line 10, after ("A") insert ("unless it is possible to provide this material without disclosing the other person's identity") 
275NB*     Line 12, at end insert ("save that this shall not prevent the Authority from providing A with a summary of the principal characteristics of those other cases") 
275NC*     Line 23, at end insert ("unless it is possible to provide this material without disclosing the other person's identity") 
  
Clause 377
 
  
BY THE LORD McINTOSH OF HARINGEY
 
275P     Page 198, line 9, after ("of") insert ("--
    (  )  supervisory notices; and
    (  )")  
 
275Q     Page 198, line 11, leave out ("a warning notice or decision") and insert ("any such") 
275R     Page 198, line 13, at end insert--
 
    ("(2A)  But the procedure may permit a decision which gives rise to an obligation to give a supervisory notice to be taken by a person other than a person mentioned in subsection (2) if--
    (a)  the Authority considers that, in the particular case, it is necessary in order to protect the interests of consumers; and
    (b)  the person taking the decision is of a level of seniority laid down by the procedure.
    (2B)  A level of seniority laid down by the procedure for the purposes of subsection (2A)(b) must be appropriate to the importance of the decision.")
 
276     Page 198, line 14, leave out ("publish") and insert ("issue") 
  
BY THE LORD SAATCHI
THE LORD KINGSLAND
 
276YA*     Page 198, line 25, leave out subsections (9) and (10) 
  
BY THE LORD McINTOSH OF HARINGEY
 
276ZA     Page 198, line 27, leave out ("warning notice or decision") 
  
BY THE LORD SAATCHI
THE LORD KINGSLAND
 
276A     Page 198, line 27, at end insert ("if the failure is not material") 
  
BY THE LORD McINTOSH OF HARINGEY
 
276AA     Page 198, line 29, at end insert--
 
    ("(  )  Supervisory notice" means a notice given in accordance with section--
    (a)  (Procedure on giving directions under section 250 or varying them on Authority's own initiative)(3), (6) or (7)(b);
    (b)  (Procedure on giving directions under section 261 or varying them on Authority's own initiative)(3), (6) or (7)(b);
    (c)  (Procedure on giving directions under section 273 or varying them on Authority's own initiative) (3), (7)(a) or (9)(a) (as a result of subsection (8)(b)); or
    (d)  314(2) or (4).")
 
  
Clause 379
 
  
BY THE LORD FRASER OF CARMYLLIE
 
276AB     Page 199, line 15, leave out from ("otherwise;") to end of line 18 
276AC     Page 199, line 21, leave out (", or is reckless as to whether it may induce,") 
  
Clause 382
 
  
BY THE LORD SAATCHI
THE LORD KINGSLAND
 
276B     Page 201, line 13, leave out ("in") and insert ("constituted under the law of") 
276C     Page 201, line 18, leave out ("in") and insert ("constituted under the law of") 
  
After Clause 388
 
  
BY THE LORD McINTOSH OF HARINGEY
 
276D     Insert the following new Clause-- 
     ("  .--(1)  The Treasury may by order--
    (a)  modify Schedule 3 so as to provide for Gibraltar firms of a specified description to qualify for authorisation under that Schedule in specified circumstances;
    (b)  modify Schedule 3 so as to make provision in relation to the exercise by UK firms of rights under the law of Gibraltar which correspond to EEA rights;
    (c)  modify Schedule 4 so as to provide for Gibraltar firms of a specified description to qualify for authorisation under that Schedule in specified circumstances;
    (d)  modify section 258 so as to make provision in relation to collective investment schemes constituted under the law of Gibraltar;
    (e)  provide for the Authority to be able to give notice under section 258(2) on grounds relating to the law of Gibraltar;
    (f)  provide for this Act to apply to a Gibraltar recognised scheme as if the scheme were a scheme recognised under section 258.
    (2)  The fact that a firm may qualify for authorisation under Schedule 3 as a result of an order under subsection (1) does not prevent it from applying for a Part IV permission.
 
    (3)  Gibraltar firm" means a firm which has its head office in Gibraltar or is otherwise connected with Gibraltar.
 
    (4)  Gibraltar recognised scheme" means a collective investment scheme--
    (a)  constituted in an EEA State other than the United Kingdom, and
    (b)  recognised in Gibraltar under provisions which appear to the Authority to give effect to the provisions of a relevant Community instrument.
    (5)  Specified" means specified in the order.
 
    (6)  UK firm" and EEA right" have the same meaning as in Schedule 3.")
Gibraltar.
  
After Clause 389
 
  
BY THE LORD SAATCHI
THE LORD KINGSLAND
 
276E     Insert the following new Clause-- 
 ("City Code 
     .--(1)  Subject to subsection (2), the Authority may adopt a policy that it will not exercise its powers under sections 113, 120, 368 and 370 in respect of conduct which is not in conformity with the City Code except following a request by the Panel that the Authority consider whether to exercise all or any of these powers.
 
    (2)  Subsection (1) does not apply in respect of behaviour which satisfies the condition in section 109(2)(a).
 
    (3)  The Authority may adopt the following policy in respect of the exercise of its powers under section 368(1) to (3), namely that, in any case where the Authority is of the opinion that--
    (a)  any application or proposed application by the Authority for any order or interdict under that section, or
    (b)  the making, confirmation or continuance of any order or interdict made under that section,
may materially affect the timetable or outcome of an offer to which the City Code applies, the Authority shall consult the Panel--
          (i)  before making or proceeding further with the application, and
          (ii)  (in any case where the Authority forms such opinion after an order or interdict has been made) before making any further representations to the court seeking the confirmation or continuance of the order or interdict.
    (4)  Where the Authority has adopted a policy within subsections (1) or (3), such policy shall be recorded in a statement issued under this section and the provisions of section 114(6) to 114(8) shall apply to a statement issued under this section.
 
    (5)  The Authority shall not exercise its powers under sections 113, 120, 368 and 370 in a manner which is not in accordance with any statement of policy issued under this section.
 
    (6)  The provisions of this Act which refer to the Panel or to the City Code shall not be construed as imposing any statutory duty on the Panel and no such duty shall be imposed on the Panel by reason of anything done or not done by the Authority or the Panel under or in connection with such provisions.
 
    (7)  Neither the Panel nor any person who is, or is acting as, a member, officer, member of staff or agent of the Panel is to be liable in damages for anything done or omitted which is or may be connected in any way with the exercise or purported exercise of any duty, power or function of the Authority under this Act unless the act or omission is shown to have been in bad faith.
 
    (8)  In this section--
    conduct which is not in conformity with the City Code" means conduct of a person which, in the opinion of the Panel, does not conform with the responsibilities imposed on that person by the City Code (as applied by the Panel);
    offer" has the meaning given in the City Code, as determined by the Panel.")
Statements of policy: City Code.
276F     Insert the following new Clause-- 
     ("  .--(1)  Subject to subsection (2), the code referred to in section 110 may state that behaviour which, in the opinion of the Panel, conforms with the responsibilities imposed on the person whose behaviour it is by the City Code (as applied by the Panel) does not amount to market abuse.
 
    (2)  Subsection (1) does not apply in respect of behaviour which satisfies the condition in subsection 109(2)(a).
 
    (3)  If a person behaves in a way which is described in or fulfils the requirements of any such statement included in the code referred to in section 110, that behaviour of his is to be taken, for the purposes of this Act, as not amounting to market abuse.")
City Code and market abuse.
 
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